Month: December 2016

The U.S. Chambers of Commerce has announced the dates for the release of the 2017 Global IP Index. It is slated to be released on February 8th, 2017 at U.S. Chambers of Commerce’s headquarters in Washington D.C. The theme for this year’s release is “The Roots of Innovation”.

The Global IP Index is the one of the most comprehensive evaluation of a country’s intellectual property regime. The 2017 Global IP Index will evaluate the IP framework of 45 countries around the world.

On page 79 and 80, the authors while comparing the right of distribution under the Treaty to the right of distribution under the WCT, the WPPT and the Beijing Treaty conclude that the right of distribution was already protected by previous international instruments. Now, this a fallacious argument to say the least.

Article 6 of the WCT vests the right of distribution (also known as the making available right) to the authors of literary and artistic works of their works. Performers have been granted the same right with respect to their performances by Article 8 and Article 10 of the WPPT and the Beijing Treaty. Producers of phonograms have the same right over their phonograms by virtue of Article 12 and Article 14 of the WPPT. So far none of the international treaties including the Rome Convention grant a making available right to the broadcasting organizations. In that case, how does granting rights which have so far not existed lead to the creation of an ‘additional layer of protection’?

In present times, the unauthorized making available of fixed broadcasts over internet is the most rampant form of signal piracy. Pirates convert the fixed broadcasts of broadcasting organizations into digital format and place them on user – generated websites such as YouTube. Users are then able to access it by either video streaming services or by downloading the whole file. For preventing this unauthorized act, a making available right is an absolute must for the broadcasting organizations. In that vein, the draft text clearly reflects the needs of the industry. Infact, even Section 37 of the Indian Copyright Act recognizes this right in the form of broadcast reproduction right.

(g) Protection of Rights Management Information (RMI) :

On page 81, the authors compare the provision on rights management information under the Treaty to those provided by the WCT, the WPPT and the Beijing Treaty. I’ve already written about this here on why this was an incongruous comparison.

(h) Term of protection :

On page 82, the authors compare the term of protection under the Treaty to the term of protection under the Berne Convention, the Rome Convention, the WPPT and the Beijing Treaty. Needless to say that this is an erroneous comparison since the term of protection under each of these treaties is applicable to its underlying subject matter. Hence, for instance, the term of protection of an artistic or literary work will be independent of the term of the protection of the broadcast signal which carries the same underlying content.

The authors argument that the term of protection envisaged under the Treaty extends protection to copyrighted works is a flawed one. As I’ve repeatedly been saying, the right of broadcasting organizations in their broadcast signal is independent of the right of copyright owners in the underlying content. Subject to exceptions, their rights are mutually exclusive.

According to the authors, the term of protection under the Treaty commenced not from the first broadcast but the last broadcast. Now, this a misinterpretation of Article 11 of the draft text. Alternative A of Article 11 clearly states that the term of protection shall be computed from the end of the yearin which the broadcast signal was broadcast. It does not say that the term of protection shall be computed from the last broadcast.

Further, the authors apprehension about the term of protection under the draft text leading to ever – greening of copyright protection is misplaced. Firstly, there cannot be any ever – greening of copyright protection as the Treaty is a neighboring rights treaty and not a copyright treaty. The term of protection subsists for each broadcast; irrespective of the term of protection for the underlying content. Therefore, the term of protection of the broadcast has nothing to do with the term of protection of the underlying content. I’ve explained this at length here. Secondly and most importantly, the object of protection as per the revised consolidated text makes it aptly clear that there shall be no protection with respect to mere retransmissions. This precludes any attempt by broadcasting organizations to seek protection under the Treaty by merely retransmitting their original broadcast signal.

(i) Limitations and exceptions to protection :

On page 83, the authors compare the limitations and exceptions under the Treaty to the limitations and exceptions under the various international treaties and conclude that the limitations and exceptions under the Treaty could possibly be narrower than those under other international conventions. As I’ve explained before, not all the alternatives of the draft text are restrictive in nature. Delegations would have to make a careful balance to strike a chord between their national copyright legislation and their international commitments under the Treaty.

Needless to say, I fully agree that limitations and exceptions are a critical part of the Treaty and need elaborate deliberations amongst the national delegations.

Conclusion :

An earnest attempt was made by the authors to delineate and compare the Treaty provisions to other international treaties. However, it would have been befitting had they backed their banal assertions by sound legal reasoning Particularly glaring is their incongruous comparison to unrelated international treaties. How is a neighboring rights treaty on broadcasting organizations comparable to a copyright treaty or to a neighboring rights treaty with a different set of intended beneficiaries? I wish that the authors would have known that apples are comparable only to apples; and not to oranges!

The authors compare nine rights and protections under the Treaty to the Berne Convention, the Rome Convention, the Brussels Convention, the WCT, the WPPT and the Beijing Treaty. These are the right of performance, the right of fixation, the right of communication to the public, the right of transmission, reproduction, distribution and the term of protection. Limitations and exceptions to the protections under the Treaty have also been compared.

(a) Right of performance :

On page 75, the authors compare the right of performance under the Treaty to the right of performance under the other international treaties. This is a grossly incongruous comparison for apples are comparable only to apples and not to oranges!

Article 11 of the Berne Convention vests the right of public performance with the authors of dramatic, dramatico-musical and musical works while Article 14 vests the same right with the authors of literary and artistic works. Similar right has been granted to performers by Article 6 (1) and Article 11 of the Beijing Treaty and Article 6 (1) of the WPPT. Neither of these instruments grant the broadcasting organizations with the right to publicly perform their broadcast signal. The closest protection that can be found is Article 13 (d) of the Rome Convention which grants broadcasting organizations the right to communicate their television broadcasts to public places where an entrance fee is charged. Given the technological limitations of the Rome Convention, this right is only limited to television broadcasts and does not cover transmissions made via cable. For remedying this inadequacy, the draft text protects the public performance right of broadcasting organizations. In this event, how can granting rights which have never existed lead to an ‘extra – layer of protection’ and that too over ‘content’ when the scope of the right extends only to the ‘broadcast signal’?

(b) Right of fixation :

On page 76, the authors compare the right of fixation under the Treaty to the right of fixation under the Rome Convention, the Brussels Convention, the WPPT and the Beijing Treaty. Once again the authors by comparing the right of fixation under the Treaty to the right of fixation under the WPPT, the Beijing Treaty and the Brussels Convention compare apples to oranges. Broadcasting organizations are not the intended beneficiaries under either the WPPT or the Beijing Treaty. Accordingly, they do not grant broadcasting organizations, a right of fixation over their broadcast signals. Further, the Brussels Convention does not vest the right of fixation to broadcasting organizations.

It is only Article 13 (b) of the Rome Convention that affords this protection to broadcasting organizations. Even then, this is a limited right as it does not extend to cover fixation of still photographs. Given the advancement in technology, it is now possible to capture high resolution still photographs of broadcasts; which can be subsequently distributed without the authorization of the broadcasting organization. For safeguarding this right, a broader technologically neutral right of fixation has been proposed under the draft text.

Further, the contention of the authors that the right of fixation under the draft text would extend to the underlying content is without merit. Alternative B of Article 9 (1) (i) clearly states that broadcasting organizations shall have the exclusive right to authorize the fixation of their broadcasts. Both the definitions of broadcast [Alternative (a) and Alternative (b) of Article 5 (b)] extend to the transmission of signal; precluding the underlying content from its scope. Needless to say that the right of fixation over the underlying content is and will remain that of the authors.

Lastly, the authors state that the right of fixation under the Treaty would add an extra layer of protection as performers and authors are already vested with a right to fixation under international treaties. Now, this is again a flawed argument. Performers have a right of fixation over their unfixed performances, authors have a right of fixation over their work and in similar vein broadcasting organizations ought to be granted a right of fixation over their broadcast signal.

Simpliciter, authors, performers, producers of phonograms and broadcasting organizations are distinct categories of rights holders. Unless otherwise provided by law, the rights of each category is distinct and independent to the rights of the others.

(c) Right of communication to the public :

On page 77, the authors while comparing the right of communication to the public under the various international treaties conclude that this right was adequately guaranteed by existing international conventions. Obviously, this is a wrong conclusion since apart from the Rome Convention, none of the other stated international treaties protect a broadcasting organization’s right of communication to the public. Even then, this is a limited right as transmissions made via cable will not fall within its purview. In this vein, the authors apprehension over the Treaty adding an ‘extra – layer’ of protection is ill – founded.

(d) Right of retransmission :

On page 78, the authors have compared the right of retransmission under the Treaty to the right of rebroadcast under the Berne Convention, the Rome Convention and the Brussels Convention. Again, this is a misplaced comparison.

Article 11 bis of the Berne Convention vests authors of literary and artistic works the right to broadcast their works to the public. This is fundamentally different from the right of broadcasting organizations to authorize the retransmission of their broadcasts. As far as the comparison with Rome Convention and the Brussels Convention is concerned, see my previous post.

(e) Right of reproduction :

On page 78, the authors compare the right of reproduction under the Treaty to the right of reproduction under the Berne Convention, the Rome Convention, the WPPT and the Beijing Treaty. Apart from the Rome Convention, the comparison with other international treaties is misplaced. Broadcasting organization’s have a distinct and independent right in their broadcast signal; which is separate from the rights of other categories of rights holders.

Article 9 of the Berne Convention grants the authors of literary and artistic works, a right of reproduction over their works. Similar right is granted to performers by Article 7 of the WPPT and the Beijing Treaty. Producers of phonograms have the same right by virtue of Article 11 of the WPPT. None of these treaties grant broadcasting organizations a right of reproduction over fixation of their broadcasts. Though, this right is granted to broadcasting organizations by Article 13 of the Rome Convention. Even then, this is a limited right as it does not take into account the current technological advances in the recording sector.

During 1961, when the Rome Convention came into being, copying posed little threat due to the considerable difficulty in which copies could be made. Not only was creating copies a time consuming affair, the end product was also of low quality. However, in the digital age, pirates can create perfect copies with considerable ease. Due to this, the protection afforded by the Rome Convention runs into the risk of becoming redundant. Hence, it is imperative that the scope of the right and terms such as copying and reproduction of fixation is clearly defined in the Treaty. However, in its current form, the draft text does not spell out these terms.

I will analyse the other rights section of the paper in the next post.

This is a rebuttal blog post to the paper ‘The Proposed Treaty for the Protection of Broadcasting Organizations : Old Wine in a New Bottle?‘ whose central thesis is that no justification for the Broadcast Treaty (the Treaty) had been fully established. Throughout he paper, the authors play the platitudinous trumpet of the Treaty’s deviation from a ‘signals based approach’ to a ‘ rights based approach’ leading to the creation of a ‘para – copyright regime’. This according to them had potential chilling effects on legitimate end uses of copyrightable material. However, they fail to substantiate their claims with sound legal reasoning.

In a three part series, I will summarize the arguments of the paper section wise with my rebuttals :

However, the existing international conventions do not take into account the recent technological advancements in the broadcasting sector. I’ve extensively written about the lacuna in the existing regime here, here and here. In this event, I fail to comprehend how will better implementation of the Rome Convention or the Brussels Conventions enable in combating signal piracy. Given that India is not a party to either of these conventions, there is zilch protection for Indian broadcasters against piracy of their signals taking place outside India. Thus, making the Treaty all the more important for India.

(II) Shift to a Rights Based Approach

The authors undertake a clause by clause comparison of the Treaty with other international treaties. They start with the definitions clause and then move towards the rights section of the Treaty. They argue that thedraft text deviates from a ‘signals based approach’ to a ‘rights based approach’. This is where I’ve serious objections to their arguments; for at many places comparison with unrelated international conventions has been made while at others the arguments are conceptually flawed.

A. Broadening of Definitions in the Broadcast Treaty

(a) Definition of signal :

On page number 72, the authors state, “In the case of a “signal”, the Broadcast Treaty speaks of an ‘electronically generated carrier consisting of sounds and images or sounds and images or representations thereof whether encrypted or not, which could potentially include content that the signal carries as well.”

Firstly, this definition is one of the alternatives as per the draft text of the Treaty. As per the second alternative, signal means an ‘electronically generated carrier capable of transmitting a broadcast or cablecast.’ This definition has absolutely no reference to ‘sounds and images’, thus precluding any scope whatsoever for the inclusion of underlying content of the signal. Secondly and most importantly, these definitions are redundant considering that therevised consolidated text on definitions, object of protection and rights to be grantedexplicitly differentiates between the content (defined as ‘programme’) and the signal (defined as the ‘programme carrying signal’).

The scope of the Treaty (titled as the Object of Protection in therevised consolidated text) extends only to the ‘programme – carrying signals’ and not to the ‘programmes’. This makes it crystal clear that the content is NOT the subject matter of the Treaty. However, since this a recent development, it would have been unknown to the authors at the time of writing the paper.

(b) Definition of broadcasting organizations :

On page number 72 and 73, the authors elucidate the definition of broadcasting organizations. They conclude their explanation of the second alternative by stating, “this definition is also by far the most technologically neutral and ensures adequate protection for broadcasting organizations on all broadcasting platforms which is potentially problematic and overreaching.

However, they fail to substantiate why was this ‘problematic and overreaching’. Without a technologically neutral definition, what recourse is available to traditional broadcasting organizations who stream their channels onto the internet in the event their online streams are pirated offshore? For the sake of information, not only do broadcasters in the developed countries stream their channels online (either in real -time or otherwise). Even Asian developing countries broadcasters use internet for broadcasting their linear channel streams. Examples of such broadcasting organizations, can be found here.

In this event, a non – technologically neutral definition is an anathema for safeguarding the signals of broadcasters against online piracy. This is not to say that the Treaty should not make adequate provisions for keeping mere webcasters out of its purview. Infact, this has already been taken into account in therevised consolidated text(See clause (d) of the definitions section).

(c) Definition of retransmission :

On page 73 of the paper, the authors while comparing the definition of ‘retransmission’ under the Treaty to the definition of ‘rebroadcasting’ under the Rome Convention conclude, “Clearly, a higher level of protection is granted to broadcasting organizations under the proposed Treaty; one that was so far not guaranteed to them by international conventions’ and clearly this is because of a shift towards a rights based approach.”

Now, this is a grossly erroneous comparison since a rebroadcast is different from retransmission. A rebroadcast is the redistribution of broadcast signals over traditional platforms while a retransmission is the redistribution of the signal over non – traditional platforms (mostly internet). Article 13 (a) of the Rome Convention protects a broadcasting organization against the unauthorized rebroadcast of its signals. However, there is no protection for unauthorized retransmission. Thus, if a broadcasters’ signal is simultaneously transmitted via cable or internet without its authorization, there is no legal redress available to it under the Rome Convention. For filling this lacuna amongst others, the need for the Treaty was expressed by the broadcasting organizations. Just because a right has so far not been recognized, does not make a case that it should never be (or else we should have never had the WIPO Internet Treaties!)

Further, how does granting retransmission rights lead to a shift in the rights based approach? A broadcaster’s right to prohibit the retransmission of its signal does not grant it the right to prohibit the redistribution of the underlying content. That right is solely vested with the copyright owner, unless the broadcasters is also the content creator. A plausible reason for the authors conclusion could be that at the time of writing the paper, the revised consolidated text was not released.

(d) Definition of rights management information :

On page number 74, the authors while analyzing the definition of ‘rights management information’ under the Treaty state, “Clearly the current treaty extends the protection offered to rights management information to pre – broadcasting signals in addition to broadcast signals, this represents a higher level of protection granted to broadcasters under the proposed Broadcast Treaty as compared to any other international treaty including the WIPO Copyright Treaty, the WPPT and the Beijing Treaty.”

This is akin to comparing apples to oranges considering that the subject matter of all the stated international treaties (the WCT, the Beijing Treaty and the WPPT) is fundamentally different from the subject matter of the Treaty.

The WCT is a special agreement under the Berne Convention which protects the right of authors suited for the digital environment. Accordingly, its rights management information provisions has been modeled to identify the work of the author and other related information. It does not make any provisions for the identification of a broadcasters signal (either pre – broadcast, live or deferred). Same holds true for the Beijing Treaty which protects the rights of performers in their audiovisual performances. Accordingly, its rights management information provision protects information that identifies the performer, his/her performances and other related information. Similarly, the WPPT protects the rights of performers and the producers of phonograms. In that vein, its rights management information provision protects information identifying the performer, the performance of the performer, the producer of the phonogram and other related information.

Infact, none of the international treaties (Rome Convention and the Brussels Convention) protecting the rights of broadcasting organizations in their broadcast signals protect their rights management information making the authors argument preposterous.

I will save my rebuttals to the Rights section of the paper for the next two posts.

Like this:

In past I’ve blogged about the WIPO Broadcasters Treaty (the Treaty) and my recent piece in the Wire dispels some of the myths surrounding the Treaty. Due to length restrictions, I could not delve at length on the misconceived notion of the Treaty blocking access to knowledge. In this post, I will rebut the recurrent sentiment about the Treaty restricting access to public domain works and some other ancillary issues.

Does the Treaty grant additional rights to broadcasters in public domain works?

Critics of the Treaty contend that by granting an ‘additional layer’ of rights to broadcasters, the Treaty restricts access to its underlying content. This argument emanates from a confusion between the use of the signal with the use of the content. The mandate of the 2007 General Assembly clarified its strict adhere to a ‘signals- based approach’, for ensuring that broadcasters are not granted an ‘additional layer’ of rights over the broadcast content.

This is clearly reflected in the latest text of the Revised Consolidated Text on Definitions, Object of Protection, and Rights to be Granted. Paragraph II (1) lucidly states that the protection granted under the Treaty shall extend only to ‘programme – carrying signals’ and not to the underlying programmes (content). A programme – carrying signal is an electronically generated carrier embodying a programme as originally transmitted and in any subsequent technical format. The text then defines ‘programme’. A plain reading of these two definitions and the object of protection makes it aptly clear that it is only the ‘signal’ (or rather only the linear signal) transmitted by the broadcasting organizations that is the subject matter of protection.

The broadcast content is NOT and cannot even be the subject matter of protection since it is within the umbrella of ‘copyright’ and not ‘neighboring rights or related rights’. A ‘signal’ is not intellectual property (copyright) sensu stricto as it befalls the classic characterization of IP. Moore defines IP as a ‘non-physical property that is the product of cognitive processes, the value of which is based upon some idea or collection of ideas’. Though, a ‘signal’ is a non – physical property, it is not the result of a cerebral process which is premised upon an ‘idea’ or ‘collection of ideas’.

Admitted that the signal transmitted by a broadcaster is not the product of creative thinking, it is worthwhile to point out that broadcasters entail significant financial investment in the acquisition, production, scheduling and transmission of the signal (which is not quite an ‘un-extraordinary signal’! We would not be able to watch FIFA or the World Cup, had it not been for this ‘un-extraordinary signal’).

The rationale for protecting a broadcasters signals is the same as that for safeguarding a phonogram producers entrepreneurial initiative for producing a phonogram, which is distinct and independent of the copyright in the musical work contained in the phonogram. Similarly, a broadcasters signal protection right is entirely exclusive and independent of the broadcast content.

In this vein, a broadcaster cannot exercise any rights over content which is independent of the broadcast. A broadcaster cannot (and should not) curtail a third – party’s right to use a public domain material from its original source. Say for instance, copyright in the movie The Little Mermaid is held by Disney and ABC has the broadcasting rights to it. After the expiration of the copyright in the movie, it will fall into the public domain. Any third party will be able to freely use the movie once it has fallen into the public domain. However, for using only the broadcast of the movie, a third party will have to buy the rights from ABC till the time the broadcast is within the term of protection (currently either 20 or 50 years as per the Draft Text of the Treaty). After the expiry of the term of protection over the broadcast, a third – party will be able to use even the broadcast (as originally held by ABC) freely.

For other public domain works such as news, limitations and exceptions would come to rescue. The recent text of the Working Document gives three alternatives for limitations and exceptions. Alternative A would be ineffectual as the stated uses of the broadcast is dependent upon the use of the content. For example, use of short excerpts for reporting current events is recognized as an exception under Article 10 (1) (ii) of Alternative A of the Treaty but not under a member states copyright legislation. This would mean that even though a third – party is permitted to use the broadcast, the use of the content can still be prohibited by the copyright owner, rendering the broadcast meaningless. Hence, national delegations should think towards adopting either Alternative B or Alternative C. Personally, I’m in favor of Alternative C due to its expansive scope. However, it is unlikely that it will receive the support of other delegations particularly the EU.

Opponents of the Treaty argue that the Treaty curtails the rights of content owners by restricting their ability to license their works to third – parties. This again stems from a commingling of copyright over the content and the protection over the signal. A content owner would continue to retain the right to license its works to third parties including in the broadcasters territory till the time it does not conflict with the rights granted to the broadcaster over the content. As a matter of fact, this is purely a contractual matter and not within the purview of the Treaty.

Further, due to the independent nature of the underlying content from the signal, content owners (rights holders) would continue to act in their independent capacity against pirates and other parties who infringe their content. In a way, the Treaty only reinforces the rights of content owners over their content. By having a right to seek injunction, broadcasters would be able to stop the infringement of the broadcast; which automatically stops the unauthorized use of the content. The right of broadcaster to act against pirates shall solely lie for the infringement of its broadcast and not the content (which rights vests with the rights holder/content owner).

Opponents of the Treaty have contended that the implementation of the Treaty would require the content users to pay license fees to broadcasters in addition to copyright owners; which in turn would lead to reduced revenues for copyright owners. This is an absurd argument to say the least. Firstly, this is purely a contractual issue, outside the scope of the Treaty (I wish to reiterate that the subject matter of the Treaty is only the ‘signal’). Secondly, why would a third party seeking access to the broadcast pay a license fee to the content owner? Any rights in the content acquired by the broadcaster from the content owner shall be paid for by the broadcaster. It is only when the third – party seeks access to the content, independent of the broadcast that it will be required to pay the license fees to the content owner. This argument of the Treaty’s opponents holds true only when the broadcaster is even the content creator. In this situation, the license fee would be governed by the contractual terms subsisting between the user and the broadcaster and shall normally be a one – time consolidated license fee (though exceptions subsist).

Lastly, as much as the critics of the Treaty may rant, it has found support even amongst the rights holder. As per a 2007 Joint Statement of Rights Holders representing authors, music publishers, performers, phonogram producers and film producers; rights holders have expressed their support for the Treaty provided it does not jeopardize their rights in the content and preserves the obligations and flexibilities as enunciated in other international treaties.

Will the implementation of the Treaty make the copyright clearance process complicated?

Critics of the Treaty have opined that the implementation of the Treaty will make the copyright clearance process unduly complicated due to the addition of broadcasting organizations as new rights holders. For the sake of clarity, new rights holders are only being added as regards the broadcast and not the underlying content. Broadcasting organizations will only hold the broadcasting rights and not the copyright in the content unless it is the content creator as well. Hence, for accessing the broadcast, a third -party will only have to approach one rights holder i.e the broadcasting organization. Any rights to the underlying content shall solely vest with the copyright owner and a third party shall be free to license the content independent of the broadcast from the copyright owner.

Conclusion :

The Treaty’s aim is not (and should not even be) to create para – copyright like protection for broadcasting organizations. In this vein, as I’ve repeatedly maintained that the Treaty is perhaps the only IP treaty till date which is bereft of the classic North – South divergences. Hence, the political stalemate over the key Treaty provisions in the past two SCCRs is preposterous.

A Treaty with adequate safeguards is an absolute must for the Indian broadcasting industry to flourish in the years to come. In this vein, I hope that India and other stakeholders wholeheartedly support the Treaty; albeit not at the cost of national interest.

COPYRIGHT POLICY

1. As an ardent supporter of the open access movement, the author does not assert any proprietary rights over the content for lawful non-commercial usage. However, due attribution and appropriate link back to the original content will be appreciated.

2. Due to the mammoth research effort involved in writing a post, usage beyond "fair use" and for "commercial purposes" is strictly prohibited albeit author's express written consent.

3. Users are urged to be mindful of third party proprietary rights in the content (including images, if any). In case of confusion, kindly contact the author at ssharma2@law.gwu.edu for clarification on "third-party rights". Clarification on the meaning of "third-party rights" WILL NOT constitute binding legal advice.